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Banks v. Village Enterprises12/5/2000
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Even were the issue raised in the Point Relied On, KFC's objection that the jury might have concluded from the question that there was a lot of insurance money available does not constitute an objection to the foundation for the Plaintiffs' inquiry about two insurers, and so does not preserve the foundation issue recognized in Ivy. In any event, we note that where two insur-ers are involved, then clearly it is proper to ask the question about both insurers. There is no precedent for requiring plaintiff to pick just one of the two insurers to mention on voir dire. Here, Mr. & Mrs. Banks clearly did establish a basis for asking about two insurers. Counsel for the plaintiffs indicated to the court before voir dire that the policy held by KFC was issued by American States, and that American States had subsequently been acquired by Safeco. The judge agreed that counsel could ask the panel members about their possible affiliation with both companies. We see no error in this ruling.
KFC also raises a question as to the way in which the insurance question was asked. Ivy establishes a particular procedure which should be followed in asking the insurance question and any follow-up questions once it is determined that, as here, a proper foundation has been laid. Specifically, Ivy held that counsel should first get the judge's approval of the proposed question outside the hearing of the jury panel. Ivy, 878 S.W.2d at 445. Second, the proponent must initially ask only one "insurance question." Id. Third, the question must not be the first or the last in a series of questions so as to avoid unduly highlighting the question to the jury panel. Id.
The issue before us is whether the Banks' counsel adequately followed the procedures set out in Ivy. It is undisputed that, prior to voir dire, counsel for Mr. and Mrs. Banks properly notified the court that he intended to ask an "insurance question" of the venire panel. KFC objected to asking any question and to the form of the question proposed, but the court ruled that an insurance question could be asked. It approved a question inquiring whether "any panel member or member of their family is employee, agent, officer or director of the insurance companies involved which is (sic) American States and Safeco." It told counsel not to ask the prospective jurors whether they held policies of these companies, presumably because the policies were stock and not mutual insurance policies. The court also indicated that if any of the panel members responded affirmatively to the first question, it would allow one follow-up question which asked whether "that relationship [will] prohibit [the panel member] from rendering an impartial verdict."
Accordingly, counsel for Mr. and Mrs. Banks asked the panel: "Does (sic) anybody here, you or any family member, an employee or an agent or an officer or a member of the board of directors of American States Insurance Company or Safeco Insurance Company?" No one answered affirmatively to the actual question as posed. However, although the question clearly did not ask whether any members of the venire held policies of either company, two panel members said that they were policyholders of American States Insurance Company. Although this was not the issue counsel had inquired about, counsel later testified that he felt it would look strange and attract attention to the question if he failed to ask any follow-up question. Accordingly, he asked the jurors the follow-up question approved by the court, asking "would that in any way influence your decision making in this case?" Both panel members answered no. Counsel for Mr. & Mrs. Banks asked the panel several more questions unrelated to insurance before concluding hi
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